administrative hearing officers handbook virginia

HEARING OFFICER DESKBOOK

A REFERENCE FOR VIRGINIA

HEARING OFFICERS

Published by the Office of the Executive Secretary of theSupreme Court of Virginia

REVISED OCTOBER 2009


Published by the Office of the Executive Secretary Administrative Law Advisory Committee Rev: 10/09

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ADMINISTRATIVE LAW ADVISORY COMMITTEE

The Administrative Law Advisory Committee (ALAC) approved this revision of the Hearing Officer Deskbook at its meeting on October 30, 2009. The Hearing Officer Deskbook was first produced by ALAC and published by the Office of the Executive Secretary of the Supreme Court of Virginia in 2001.



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TABLE OF CONTENTS TABLE OF CONTENTS ...................................................................................................ii

I. APPLICABILITY ............................................................................................................1

II. QUALIFICATIONS AND RESPONSIBILITES ............................................................. 2

A. Hearing Officer Qualifications ........................................................................... 2

B. Hearing Officer Responsibilities ........................................................................ 2

III. ASSIGNMENT OF THE CASE................................................................................... 4

IV. PRE-HEARING ISSUES............................................................................................ 5

A. Scheduling, Notice and Location....................................................................... 5

B. Exchange of Information ................................................................................... 6

C. Pre-Hearing Statements and Settlement Conferences ..................................... 6

D. Subpoenas........................................................................................................ 8

E. Ex Parte Communications................................................................................. 9

V. THE HEARING ......................................................................................................... 10

A. Failure to Attend Hearing ................................................................................ 10

B. Written Statements ......................................................................................... 10

C. Evidence ......................................................................................................... 11

D. Experts............................................................................................................ 11

E. Standard and Burden of Proof ........................................................................ 12

F. The Hearing Record and Transcript................................................................ 12

G. Open Meetings and the News Media .............................................................. 13

H. Recusal/Disqualification.................................................................................. 13

VI. POST-HEARING ISSUES ....................................................................................... 15



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Duration of a Hearing Officer’s Authority ................................................................ 15

VII. THE DECISION/ RECOMMENDATION.................................................................. 16

Drafting the Decision .............................................................................................. 16

VII. APPENDICES .................................................................................................... 18

Appendix A – Hearing Officer System Rules of Administration

Appendix B – The Decision (Excerpt from Manual for Administrative Law Judges, Morrell E. Mullins, 2001 Interim Internet Edition, William H. Bowen School of Law, University of Arkansas at Little Rock)



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I. APPLICABILITY This Deskbook contains procedural guidelines that are intended to assist hearing officers in the conduct of formal hearings for administrative agencies of the Commonwealth pursuant to § 2.2-4020 of the Code of Virginia. These guidelines create no legal mandates or requirements, but they should be used to assist hearing officers in handling hearings and proceedings. They are, however, intended for use only when agency statutes and rules are vague or do not address the issue in question. Whenever there is a statute or an agency rule on point, it applies. Although these guidelines were written for hearings pursuant to § 2.2-4020 of the Code of Virginia, they are useful guidelines for other adjudicative settings. They also may be used with certain modifications for informal fact-finding proceedings held pursuant to § 2.2-4019 of the Code of Virginia.

The Office of the Executive Secretary of the Supreme Court of Virginia, the Administrative Law Advisory Committee, state agency personnel, and several hearing officers have contributed to the development of this publication. It marks the continuation of a process to articulate standard procedural guidelines and its contents may be changed or supplemented from time to time at the request of agencies and hearing officers. The Office of the Executive Secretary of the Supreme Court of Virginia publishes these guidelines and may be contacted for suggestions or additional copies.



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II. QUALIFICATIONS AND RESPONSIBILITES

A. Hearing Officer Qualifications

Hearing officers must meet the following standards:

1. Active membership in good standing in the Virginia State Bar,

2. Active practice of law for at least five years, and

3. Completion of courses of training as required by statute and approved by the Executive Secretary of the Supreme Court of Virginia pursuant to Rule Two (B) (6) and Three (A) (1) of the Hearing Officer System Rules of Administration. Additional training requirements may be imposed by agencies to qualify the hearing officer to hear cases for those agencies.

Comment

These hearing officer qualifications apply only to hearing officers on the list prepared and maintained by the Office of the Executive Secretary of the Supreme Court of Virginia. The qualifications do not apply to hearing officers used by agencies exempt from the requirement to use a hearing officer from this list.

The Hearing Officer System Rules of Administration (included as Appendix A) require hearing officers to have prior experience with administrative hearings or knowledge of administrative law, demonstrated legal writing ability, and a willingness to travel to any area of the state to conduct hearings. According to Rule Two (B) (2) of the Hearing Officer System Rules of Administration, one is engaged in the "active practice of law … when, on a regular and systematic basis, in the relation of attorney and client, one furnishes to another advice or service under circumstances which imply his possession and use of legal knowledge and skill."

B. Hearing Officer Responsibilities

Generally, the hearing officer's responsibilities are to:

1. Adhere to timelines that may be imposed by the agency.

2. Establish the time, place and nature of the hearing and provide reasonable notice of these to the parties.



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3. Manage the pre-hearing exchange of information so that all parties have access to the information that may be admitted into evidence and to the witnesses that may be called.

4. Establish the hearing procedure to be used and communicate this to the parties so that they will know what to expect. This may be done during the pre-hearing exchange or immediately before the hearing.

5. Manage the transcript and record of the case. The record should include a transcript or audible recording of the hearing, all evidence submitted or information exchanged, and any subsequent motions and post-hearing filings.

6. Make a timely decision and communicate it promptly to the parties.

Parties to the case should be treated professionally by the hearing officer and receive a cogent decision in a timely manner. It is incumbent upon the hearing officer to control the hearing and the parties in a professional manner. This includes creating a setting for the hearing that enables the parties to provide the hearing officer with the evidence needed to render a proper decision. Accordingly, the hearing officer must be prepared to deal with and make any necessary accommodations for parties with special needs. It is also the hearing officer's responsibility to manage the record. The record should be clear, complete, and orderly, so that anyone reading the hearing officer's report may ascertain the evidence and testimony that he has relied upon in deciding the case or in recommending a decision to the agency.

If a hearing officer fails to perform these responsibilities in a professional and ethical manner, the hearing officer may be removed or disqualified pursuant to the Hearing Officer System Rules of Administration. (Appendix A.).



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III. ASSIGNMENT OF THE CASE A hearing officer should adhere to the following guidelines when accepting an assignment of a case:

1. A hearing officer should never accept a case that would create a conflict of interest.

2. A hearing officer who has an ongoing assignment with an agency should not take a case involving that agency.

3. A hearing officer should not represent a client that has a matter pending before an agency for which the hearing officer has an ongoing assignment.

4. In deciding whether to accept a case, a hearing officer should consider other commitments, real and potential conflicts of interests, and any other factors that may limit the hearing officer's ability to act as an effective, unbiased adjudicator.

5. Standard rules of legal ethics with regard to conflicts should apply.

Comment

See the "Recusal and Disqualification" section of this handbook and the Hearing Officer System Rules of Administration, included as Appendix A. For further guidance on potential conflicts, see the Rules of Professional Conduct (Rules of the Supreme Court of Virginia, Part Six, Section II) and Unauthorized Practice Rules (Rules of the Supreme Court of Virginia, Part Six, Section I).



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IV. PRE-HEARING ISSUES A. Scheduling, Notice and Location

1. Absent instructions from the agency to the contrary, the hearing officer is responsible for scheduling the hearing and providing notice to the parties, once the hearing officer has been appointed. Even if the hearing officer is not responsible for scheduling the hearing, the hearing officer should ensure that the agency complies with all legal requirements for scheduling the hearing and providing notice.

2. Hearings should be scheduled at a time and manner convenient to all parties. Virginia Code Section 2.2-4020 sets the standards for reasonable notice of the time, place, and nature of the proceeding. If the parties agree, the hearing can be held sooner than indicated on the notice. The hearing officer may grant a change in time, place or date in order to prevent substantial delay, expense, or detriment to the public interest, or to avoid undue prejudice to a party. However, the hearing officer must remember that any rescheduling cannot interfere with statutory or regulatory deadlines.

3. Unless previously specified by the agency, the place at which the hearing will be held shall be determined by the hearing officer. The hearing should be held at a place that is convenient to the parties.

4. Virginia Code Section 2.2-4020 requires reasonable notice to the parties of the basic law or laws under which the agency contemplates its possible exercise of authority and the matters of fact and law asserted or questioned by the agency.

Comment

Cases heard pursuant to Virginia Code Sections 2.2-4019 and 2.2-4020 of the Administrative Process Act impose a deadline of 90 days for issuing a decision once a case has been heard. Hearing officers should bear in mind that some agencies have deadlines for issuing decisions that run from the time of scheduling a hearing.

What is considered "reasonable" notice depends on the circumstances and cannot be determined in a vacuum. In most cases, reasonable notice is 30 days prior to the date scheduled for the hearing. However, the agency's basic law or circumstances may indicate a shorter period.



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The hearing officer should be as flexible as possible in scheduling hearings, and may wish to consider evening and weekend hearings if that is convenient to the parties.

B. Exchange of Information

1. The Administrative Process Act does not permit discovery. However, Section 2.2-4019 provides that "agencies may, in their case decisions, rely upon public data, documents or information only when the agencies have provided all parties with advance notice of an intent to consider such public data, documents or information."

2. The hearing officer can make the hearing operate more smoothly and prevent surprises by requiring all parties to exchange the information that they intend to rely upon in advance of the hearing. Information to be exchanged should include a list of witnesses each party intends to call and any documents that will be offered into evidence. The hearing officer may also require that copies of all such documents be sent to him or her in order to prepare for the hearing. Some hearing officers set the deadline for the exchange of information at one week before the hearing, so that there is an opportunity to issue a reminder if necessary. Reminding the parties that they may not call any witnesses or enter any evidence not exchanged in advance of the hearing will help to ensure compliance.

3. When it is desirable to have an advance written exchange of confidential or proprietary information, the hearing officer can use safeguards to ensure confidentiality. For example, the hearing officer may issue a protective order or obtain the commitment of the parties receiving the material to limit its distribution. As an additional safeguard, all copies of such material should bear a prominent statement of the limitations upon its distribution.

C. Pre-Hearing Statements and Settlement Conferences

1. On motion by a party or by the hearing officer's own order, the hearing officer may schedule a pre-hearing conference. Any pre-hearing conference should be scheduled with due regard for the convenience of all parties, and allow reasonable notice of the time, place, and purpose of the conference to all parties. A conference should be held in person and on the record, unless the hearing officer concludes that personal attendance by the hearing officer and the parties is unwarranted or impractical; in this instance, the conference may be held by telephone or other appropriate means. Among the topics that may be included in a pre-hearing conference are:

a. Identification, simplification and clarification of the issues;



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b. Explanation of procedures, establishment of dates (i.e. for hearings or submissions), and explanation of the roles of the parties, representatives, and the hearing officer;

c. Stipulations and admissions of fact, and of the content and authenticity of documents;

d. Disclosure of the number and identities of witnesses;

e. Exploration of the possibility of settlement; and

f. Identification of such other matters as shall promote the orderly and prompt conduct of the hearing.

2. A hearing officer may require all parties to a case to prepare pre-hearing statements at a time and in a manner established by the hearing officer. Among the topics that may be included in a pre-hearing statement are:

a. Issues involved in the case;

b. Stipulated facts (together with a statement that the parties have communicated in a good faith effort to reach stipulations);

c. Facts in dispute;

d. Witnesses and exhibits to be presented, including any stipulations relating to the authenticity of documents and witnesses as experts;

e. A brief statement of applicable law;

f. The conclusion to be drawn; and

g. The estimated time required for presentation of the case.

3. Early, informal resolution of disputes is encouraged. However, the hearing officer should not attend or preside at any settlement or alternative dispute resolution conferences, and settlement discussions shall not be made a part of the record. Instead, the hearing officer should contact the agency to ensure that such settlement is permissible, invite a motion to pursue resolution through alternative dispute resolution, then grant and record that motion in the record. Ordinarily, a stay should be issued upon request of both parties to pursue alternative dispute resolution.

Comment



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The hearing officer may wish to discuss any guidelines for written testimony, and estimate the time required for the hearing. After the hearing or conference, it may be helpful to summarize the pre-hearing conference and any agreements reached, and mail copies to all parties.

D. Subpoenas

1. Section 2.2-4022 provides that "[t]he agency or its designated subordinates may, and on request of any party to a case shall, issue subpoenas requiring testimony or the production of books, papers, and physical or other evidence."

2. Hearing officers are not presumed to have the power to issue subpoenas. However, the authority to issue subpoenas may be addressed in the appointment letter from the agency. If not addressed, the hearing officer should contact the agency to determine whether the agency has delegated this authority.

3. Any person who is subpoenaed may petition the hearing officer to quash or modify the subpoena. A hearing officer may quash or modify a subpoena where the evidence sought is irrelevant or inadmissible, or when the subpoena was illegally or improvidently granted. If a hearing officer refuses to quash a subpoena, the objecting party may petition the circuit court for a decision on its validity. If a party refuses to comply with a subpoena, the hearing officer may procure enforcement from the circuit court. The appropriate circuit court is determined by § 2.2-4003.

Comment

The statutory right to a subpoena duces tecum is not unlimited. Section 2.2-4022creates a right for the parties to subpoena evidence that is relevant and admissible as evidence in the administrative proceeding. See State Health Dept. Sewage Handling & Disposal Appeal Review Board v. Britton, 15 Va. App. 68, 421 S.E.2d 37 (1992).

In some agencies, the hearing officer must issue a subpoena upon request, subject to a motion to quash. In other agencies, the hearing officer may refuse to issue a subpoena absent a showing of relevance and need. In either case, to prevent evasion of service, the subpoena usually is granted ex parte and its signing is not disclosed until either service has been accomplished or the party who obtained the subpoena chooses to disclose it.

Even if reimbursed for travel expenses and compensated by witness fees, a witness who is required to travel far from home will be inconvenienced at least, and may undergo severe hardship. Furthermore, subpoenas duces tecum may compel the transportation of bulky documents and may deprive a business of records and files needed for its daily operation. These burdens should not be lightly imposed. The



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hearing officer may, in appropriate cases, and subject to agency rules, shift some of these burdens to the party seeking documents by permitting their inspection and reproduction on the premises where they are regularly kept. The hearing officer also may encourage agreements between the parties which provide for the submission of copies of specified material at the hearing, subject to verification procedures agreeable to the parties.

Sometimes subpoenas will be requested for material the hearing officer has previously ruled need not be produced. Upon learning of this, the hearing officer should deny the request unless it appears that the earlier ruling should be changed. It is not usually worthwhile, however, to search the record of a lengthy pre-hearing conference or other pre-hearing actions to determine whether the matter has already been considered. The subpoenaed witness can always move to quash.

E. Ex Parte Communications

1. In order to ensure an impartial and fair proceeding, ex parte communicationswith any party, counsel, or other interested person should be avoided from the outset.

2. Upon receiving an ex parte communication, the hearing officer should promptly make note of that communication for the record and bring it to the attention of all the parties involved. All parties should be afforded adequate opportunity to comment on the record regarding the communication.

Comment

Communications between the hearing officer and one party without the presence of the other party are always suspect. Some ex parte communications are innocent in the sense that the person approaching the hearing officer is unaware that this action is improper. When such an incident occurs, the hearing officer should prepare a written memorandum describing the communication and file it in the record. Some communications may not be related to the merits of the case, but they still generate controversy. For example, although a request for a postponement is not about the merits of the case, the request should not be granted without consulting the other party or parties. If the hearing officer believes the communication has no bearing on the case, it does not need to be recorded. However, these are rare instances, reserved for telephone calls confirming the date of a hearing and the like, and a hearing officer should err on the side of recording every communication to relieve any doubt of impropriety.



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V. THE HEARING A. Failure to Attend Hearing

1. A party who fails after proper notice to attend a pre-hearing conference should be notified of any rulings made during the conference and provided the opportunity to object.

2. In the absence of a party who, after proper notice and without good cause, fails to attend, the hearing officer may proceed with the hearing and render a decision.

Comment

Although a hearing officer may proceed with a scheduled conference if one party fails to appear, hearing officers are encouraged to delay ruling until the absent party has been consulted.

A hearing officer may delay the hearing while trying to find the absent party. After hearing a case in which a party fails to attend, the hearing officer may hold the record open until the report is issued to the agency. Unless otherwise limited in the agency's rules, it is in the discretion of the hearing officer whether to reconvene the hearing. If the party who failed to appear provides a reason for such absence, which, if proven, would constitute good cause, a hearing officer who still has authority over the case may reconvene the hearing. A hearing officer's determination of good cause should not be made ex parte.

B. Written Statements

A hearing officer may allow written statements of a witness to be admitted into the record and should direct parties to exchange all written statements in a reasonable time before the hearing. Prior exchange of written statements allows parties to subpoena those submitting the statements for cross-examination, or to object to the introduction of the written statement.

Comment

In order to address comparability or credibility issues, the hearing officer may wish to establish guidelines for the submission of written statements prior to the hearing. Preparation and exchange of written statements can be very beneficial, especially in complex cases. In proceedings where written statements are involved, the hearing officer should require such information to be exchanged as part of the prehearing development of a case in order to allow parties an opportunity to subpoena witnesses



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for cross-examination. For credibility and cross-examination purposes, it is always preferable that a witness be present and testify at a hearing.

The probative weight of a written statement is left to the hearing officer's discretion.

See: Baker v. Babcock & Wilcox Co., 11 Va. App. 419, 399 S.E.2d 630 (1990) (claimant was not denied his right to cross-examine a witness who submitted a written statement because the claimant failed to subpoena her or otherwise pursue cross-examination); Klimko v. VEC, 216 Va. 750, 222 S.E.2d 559, cert. denied, 429 U.S. 849 (1976) (claimant was not denied his right to cross examination and confrontation because he did not pursue them); Virginia Real Estate Commission v. Bias, 226 Va. 264, 308 S.E.2d 123 (1983) (findings of administrative agencies will not be reversed solely because evidence was received that would have been inadmissible in court).

C. Evidence

Hearsay may be admissible, provided it is otherwise reliable. A hearing officer is directed by Virginia Code § 2.2-4020 (C) to: “receive probative evidence, exclude irrelevant, immaterial, insubstantial, privileged, or repetitive proofs, rebuttal, or cross-examination, rule upon offers of proof, and oversee a verbatim recording of the evidence, . . .”

See: Mirabile Corp. v. Va. Alcoholic Bev. Control Bd., No. 2126-02-4, 2003 Va. App. LEXIS 493 (Ct. of Appeals Sept. 30, 2003) (admission of a photocopy of a minor’s identification card was not error as there was testimony that the photocopy was a true copy of the original, nor was the board required to call the minor, where neither the minor nor the original were available);

Hearsay is not inadmissible per se. Unless statute or agency rule requires otherwise, any evidence may be admitted if it appears to be relevant, reliable, and not otherwise improper.

Comment

The probative weight of hearsay evidence is left to the hearing officer's discretion. The hearing officer should ensure that rulings resulting from attempts to introduce evidence are explained on the record.

D. Experts

Expert opinions may be admitted in administrative proceedings. Before the date of the hearing, all parties should exchange the names, addresses, and qualifications of any expert that may testify. It is within the hearing officer's discretion to qualify an expert and determine the weight afforded to expert opinions. Hearing officers are not bound by expert opinions presented to them, and at times must resolve conflicts between expert



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testimonies. By statute, in civil cases, no expert or lay witness shall be prohibited from expressing an opinion on the ultimate issue of fact. (§ 8.01-401.3 (B)) However, this section prohibits such witnesses from expressing any opinion which constitutes a conclusion of law.

E. Standard and Burden of Proof

1. No single standard of proof governs in all types of administrative hearings; the standard applicable to a particular type of hearing depends on the relevant statute or agency rule.

2. The burden of meeting this standard of proof may shift between the parties.

F. The Hearing Record and Transcript

1. The record usually consists of:

a. A letter of appointment.

b. Notice of a party's request for a hearing.

c. Any rulings by the agency.

d. Notices of all proceedings.

e. Any pre-hearing orders.

f. Any motions, briefs, pleadings, petitions and intermediate rulings.

g. All evidence produced, whether admitted or rejected.

h. A statement of all matters officially noticed.

i. Proffers of proof and objections and rulings thereon.

j. Proposed findings, requested orders and exceptions.

k. A transcript or recording of the hearing.

l. Any initial order, final order or order on reconsideration.

m. Matters placed on the record after an ex parte communication.

n. Agency submissions to the hearing officer.



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2. The record should be organized, indexed, tabbed, and otherwise assembled so that easy reference to the record can be made and readily cited.

3. The hearing officer's responsibility for assembling and preserving the record begins when the hearing officer accepts the case assignment. It continues until the hearing officer submits a final decision or report.

Comment

It is the hearing officer's responsibility to ensure that either a transcript or a recording of the hearing is made. If the hearing is to be recorded, the hearing officer should test the equipment before the hearing to ensure that it is operating correctly.

G. Open Meetings and the News Media

1. In the absence of statute or agency rule to the contrary, hearings are open to the public.

2. During the course of a hearing, the hearing officer will be called upon to make decisions whether to sequester witnesses or to limit the distribution of evidence.

3. The hearing officer has the right to control media and spectators in the interest of providing a fair hearing and protecting the interests of all involved.

H. Recusal/Disqualification

Subsection C of Section 2.2-4024 requires that a hearing officer who may be unable to act fairly and impartially withdraw from the case.

1. Any party may request the disqualification of the hearing officer by promptly filing an affidavit with the appointing authority upon discovering a reason for disqualification.

2. Possible reasons for recusal or disqualification include, but are not limited to:

a. Conflict of interest, including:

(i) having a financial interest in the outcome of the case;

(ii) the hearing officer's firm representing one of the parties involved;

(iii) a member of the hearing officer's family being employed by one of the parties involved.



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b. Bias toward or against one of the parties involved;

c. Prejudgment of one or more of the issues involved; or

d. Disability.

Comment

See the Rules of Professional Conduct (Rules of the Supreme Court of Virginia Part Six, Section II) and Unauthorized Practice Rules (Rules of the Supreme Court of Virginia, Part Six, Section I).

An impartial decision-maker is essential. While no one is totally free from all possible forms of bias or prejudice, the hearing officer must conscientiously strive to set aside preconceptions and rule as objectively as possible on the basis of the evidence in the record. In addition, and despite a hearing officer's subjective good faith, a hearing officer who has a financial interest (even if small or diluted) in the outcome of the case should not decide that case.

When a hearing officer questions whether or not to recuse himself or herself, it is preferable to choose recusal. If grounds for finding bias truly exist, then recusal is preferable to risking a later reversal and jeopardizing the validity of the entire proceeding. A hearing officer's unreasonable failure to recuse himself or herself may lead to permanent removal from the Supreme Court of Virginia’s list of hearing officers. Requests to remove a hearing officer from a case should be made before the hearing.



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VI. POST-HEARING ISSUES Duration of a Hearing Officer’s Authority

1. A hearing officer's authority begins with acceptance of the case assignment.

2. Subject to statute or agency rule, a hearing officer has authority over a proceeding until:

a. the agency revokes such authority; or

b. a decision or recommendation has been rendered and the appropriate period for appeal or reconsideration has expired.



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VII. THE DECISION/ RECOMMENDATION Drafting the Decision

A. A hearing officer's decision or recommendation may contain the following:

1. Title page with the name of the case, type of decision, the date of issuance, and the name of the hearing officer;

2. List of appearances, including the name and address of every person who entered an appearance and the persons or organizations represented;

3. Service sheet, including the name and address of every person on whom the decision should be served;

4. Findings and conclusions, and the reasons therefor, on all material issues of fact, law, or discretion presented on the record, including specific citations to the applicable portions of the record;

5. An order as to the final disposition of the case, including relief, if appropriate;

6. The recommended date upon which the decision will become effective, as appropriate, subject to further appeal; and

7. A statement of the right to appeal, including any deadlines for appeal.

B. In reaching a decision or recommendation, the hearing officer should consider the entire record, and the hearing examiner should refer frequently to specific evidence in the record in the opinion or report.

C. The decision or recommendation should be written as soon after the conclusion of the hearing as possible, while all evidence and testimony are fresh in the hearing officer's mind. Section 2.2-4021 requires that hearing officers render a decision or recommendation within 90 days of the date of the proceeding or at a later date agreed to by the parties.

D. The hearing officer should deliver the decision or recommendation to the parties and deliver the record as directed by the agency.

Comment

The opinion or report accompanying a hearing officer's decision or recommendation should be concise and well reasoned. Its length and detail should be determined by the



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complexity of the issues involved. See Appendix B for further guidance in writing the decision/recommendation, excerpt from Manual for Administrative Law Judges, Morrell E. Mullens, 2001 Interim Internet Edition, William H. Bowen School of Law, University of Arkansas at Little Rock, which can be found at http://ualr.edu/malj/malj.pdf. The hearing officer should consult the agency to see if the agency prefers a certain format for notices and decisions.



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VIII. APPENDICES Appendix A – Hearing Officer System Rules of Administration

Appendix B – The Decision (Excerpt from Manual for Administrative Law Judges,Morrell E. Mullins, 2001 Interim Internet Edition, William H. Bowen School of Law, University of Arkansas at Little Rock)

Hearing Officer System Rules of Administration

Hearing Officer System Rules of Administration

Rule One - Applicability; Definitions.A. These rules are promulgated in accordance with § 2.2-4024 of the Code of Virginia and shall

govern the administration of the Hearing Officer System as established and implemented by Article 4 of Title 2.2-4000. The rules shall apply to the constitution of the hearing officers list and the appointment of all hearing officers required to be selected from the list on and after July 1, 1986.

B. References herein to "he," "it" and "its" shall apply equally to "she," "him," "his" or "her." The singular shall include the plural.

Rule Two - Appointment; Qualifications; Retention.A. Appointment. Any person desiring to be included on the hearing officer list must request

appointment by submitting a letter of request and resume to the Executive Secretary of the Supreme Court of Virginia, 100 North Ninth Street, Third Floor, Richmond, VA 23219. The letter of request must contain information sufficient to satisfy the minimum qualifications as established by these rules.

B. Qualifications. All hearing officers shall possess the following minimum qualifications for appointment to the hearing officer list:

1. Active membership in good standing in the Virginia State Bar;2. Active practice of law for at least five years. In order to satisfy this requirement, the

applicant must have completed five years of active practice of law with two of these years in Virginia. For purposes of these rules, the active practice of law exists when, on a regular and systematic basis, in the relation of attorney and client, one furnishes to another advice or service under circumstances which imply his possession and use of legal knowledge and skill. If not presently engaged in the active practice of law, the applicant must, in addition to the requirements of this section, have previously served as a hearing officer, administrative law judge, or possess extensive prior experience with administrative hearings;

3. Prior experience with administrative hearings or knowledge of administrative law; 4. Demonstrated legal writing ability; 5. Willingness to travel to any area of the state to conduct hearings; and 6. Completion of one training program for administrative hearing officers sponsored by the

Office of the Executive Secretary. Such programs will be conducted on an annual basis.

C. Failure to Appoint. After reviewing the request for appointment, if the Executive Secretary concludes that the applicant should not be appointed to the hearing officer list, he shall so advise the applicant in writing specifying the reason for his failure to make the appointment. The

applicant may, within 10 calendar days of the postmark of the notification letter, request by letter reconsideration and a personal appearance before the Executive Secretary. Within 15 calendar days of receipt of such request, the Executive Secretary shall arrange for this meeting or reconsideration and shall advise the applicant of his decision.

D. Retention. Upon compliance with the provisions of subsections (A) and (B) of this rule, the Executive Secretary of the Supreme Court of Virginia shall notify the applicant of appointment to the hearing officer list. Retention of the Hearing Officer shall be determined by the Executive Secretary.

Rule Three - Training. A. Continuing Education. Once appointed to the hearing officer list, a hearing officer must satisfy

the following minimum training requirements in order to maintain appointment to the hearing officer list:

1. Completion of one training program each calendar year. Such training programs for administrative hearing officers will be sponsored by the Office of the Executive Secretary and will be conducted on an annual basis.

If you are unable to attend the annual training program, you must notify the Educational Services Department of the Office of the Executive Secretary to request a waiver. If the waiver is granted, conference materials (video presentations and accompanying handouts) will be mailed to you, along with a "Certificate of Completion" form that must be signed and returned by the date specified. Failure to complete the continuing education requirements may result in removal from the list maintained by the Office of the Executive Secretary.

B. Specialized Training. In order to comply with the demonstrated requirements of an agency requesting a hearing officer, the Executive Secretary may require additional specialized training before a hearing officer will be designated as qualified to be assigned to a proceeding before that agency. Any hearing officer desiring to be assigned to proceedings before such an agency must request instructions from the Executive Secretary on compliance with the specialized training requirements. The following is a list, which may from time to time be amended, of those agencies which require specialized training:

1. Special Education (Department of Education) 2. Rate-Setting Procedures (Departments of Education, Corrections and Social Services)3. Department of Employee Dispute Resolution 4. Department of Medical Assistance Services

Rule Four - Removal and Disqualification. A. Removal. The Executive Secretary shall have the authority to remove hearing officers from the

hearing officer list. Any agency or individual seeking removal of a hearing officer from the list shall submit such a request to the Executive Secretary in the form of a letter specifying the grounds

for removal. Within 10 calendar days of receipt of such request, the Executive Secretary shall forward, by certified mail, a copy of the request for removal to the hearing officer involved. Within 15 calendar days of the postmark of such certified letter, the hearing officer shall submit a written response. The response should address the allegations contained in the request for removal and should indicate whether an ore tenus hearing is desired. If an ore tenus hearing is not requested, the Executive Secretary shall rule on the request for removal within 15 days of receipt of the response from the hearing officer. He shall communicate his decision to the requesting individual or agency and to the hearing officer. If an ore tenus hearing is requested, the Executive Secretary shall convene such a hearing within 30 days of receipt of the request.

1. Procedure at Hearing. The following general procedure shall be followed at the ore tenus hearing:

a. The Executive Secretary shall convene the hearing, state the purpose and read the list of allegations.

b. The person making the request for removal shall be allowed to testify as to the acts or omissions that he believes constitute the need for dismissal. That person may call any other witnesses necessary to support the request.

c. The hearing officer shall be allowed to testify and produce any witnesses or evidence to rebut the request.

d. All testimony shall be taken under oath. e. All witnesses are subject to cross-examination and may be questioned by the

Executive Secretary. f. The Rules of Evidence shall not be strictly applied.g. The Executive Secretary may call any witnesses that he desires to hear.h. Both parties may present oral arguments. i. At the conclusion of the hearing, the Executive Secretary will render his decision or

advise the parties of a date that such decision will be made. Such date shall not be more than 15 calendar days from the hearing.

2. Grounds for Removal. In considering requests for removal, the Executive Secretary shall consider allegations of:

a. Continuous pattern of untimely decisions; failure to render decision within regulatory time frames;

b. Unprofessional demeanor; c. Inability to conduct orderly hearings;d. Improper ex parte contacts; e. Violations of due process requirements; f. Mental or physical incapacity; g. Unjustified refusal to accept assignments; h. Failure to complete training requirements of Rule Three (A);i. Professional disciplinary action.

3. Reconsideration. Upon notification of removal from the hearing officer list, the hearing officer may, within 10 calendar days of the postmark of the letter of notification, request reconsideration of the decision. Such request shall be in the form of a letter and shall contain any additional information desired for consideration. No ore tenus hearing shall be held. The Executive Secretary must render a decision on the reconsideration within 10 calendar days of receipt of the request for a reconsideration. Upon receipt of this decision,

the hearing officer shall have available judicial review in accordance with the Administrative Process Act.

B. Disqualifications. A hearing officer shall voluntarily disqualify himself and withdraw from any case in which he cannot accord a fair and impartial hearing or consideration, or when required by the applicable rules governing the practice of law in the Commonwealth. Any party may request the disqualification of a hearing officer by filing an affidavit with the Executive Secretary of the Supreme Court of Virginia prior to the taking of evidence at the hearing. The affidavit shall state, with particularity, the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded, or the applicable rule of practice requiring disqualification. A copy of this affidavit shall be sent to the hearing officer. Within 5 calendar days of receipt of the affidavit, the hearing officer shall submit any response by affidavit to the Executive Secretary. The issue shall be determined not less than 10 calendar days prior to the hearing by the Executive Secretary. No ore tenus hearing shall be permitted. The filing of an affidavit for disqualification shall not stay the proceedings or filing requirements in any way except that the hearing may not be conducted until a ruling on the request for disqualification has been made. If the Executive Secretary determines that the hearing officer shall not be disqualified, the hearing shall proceed as scheduled. If the Executive Secretary determines that the hearing officer is disqualified, he shall appoint a new hearing officer so that the hearing can proceed as scheduled whenever possible.

Rule Five - Selection. A. Organization of List. The hearing officer list will be maintained by geographic regions. The

regions are composed as follows: Region One - Judicial Circuits 1, 2, 3, 4, 5, 7, 8, 9; Region Two - Judicial Circuits 17, 18, 19, 20, 31; Region Three - Judicial Circuits 6, 11, 12, 13, 14, 15; Region Four - Judicial Circuits 27, 28, 29, 30; Region Five - Judicial Circuits 10, 21, 22, 23, 24; Region Six - Judicial Circuits 16, 25, 26. Appropriate hearing officers will also be designated as having received any required specialized training.

B. Selection. Upon request from the head of any agency, his designee, or from any entity authorized by statute to utilize the hearing officer list, the Executive Secretary, or his designee, will select a hearing officer from the appropriate region using a system of rotation. The hearing officer within the appropriate region with the oldest previous selection date will be named. In cases requiring specialized training, the same procedure will be followed except that the person selected must also have received the specialized training.

1. Requests for selection of a hearing officer should be submitted by contacting the Executive Secretary by telephone at 804/786-6455. When making the request, the following information shall be provided:

a. Name and address of requesting party; b. Style of hearing; c. Location (county or city) of the parties.

2. When the request for selection is received, the Office of the Executive Secretary shall advise the requestor of the name and address of the selected hearing officer. All further contacts and arrangements with the hearing officer will be made by the requesting party.

Should the first person selected be unavailable to conduct the hearing, the requesting party shall advise the Executive Secretary immediately and request another hearing officer.

3. Upon making the selection, the Executive Secretary shall, at least two days after the selection, confirm the selection by letter to the requesting party.

Rule Six - Compensation. A. Compensation. The agency or entity requesting appointment of the hearing officer shall be

responsible for all compensation of the hearing officer. Each agency or entity shall have authority to determine the rate of compensation.

B. Suggested Compensation. In order to create greater uniformity, the following compensation guidelines are suggested. These guidelines are not mandatory, but are suggested as an indication of reasonable allowances.

1. Hourly rate�� Hearing time $100.00�� Administrative time 75.00 �� Clerical 25.00

Hearing time - hours reading the record, conducting the prehearing conference and the hearing, or writing the decision.Administrative time - hours in research, composing and reviewing correspondence, and telephone calls.Clerical - preparing and mailing correspondence, making arrangements for hearings, faxing, and other tasks normally preformed by clerical staff.

2. Other expenses - Hearing officers shall be reimbursed for actual expenses associated with travel to the hearing at the rates established in the state's Travel Regulations. If a hearing location is greater than 35 miles from the place of business, the hearing officer shall be compensated an additional $100 for each round trip to a hearing site. Postage, telephone, fax, and photocopying shall be billed at the actual cost.

3. Billing - All fees and billing arrangements shall be discussed and agreed to with the employing agency. All bills shall be itemized and calculated in increments of 0.1 hours. Agencies shall not be charged for telephone calls made where no business has been transacted. Bills are to be submitted to the agency receiving services.

Effective 7/1/05

The Decision (Excerpt from Manual for Administrative Law Judges, Morrell E. Mullins, 2001 Interim Internet Edition, William H. Bowen School of Law, University of Arkansas at Little Rock)

MANUAL FOR ADMINISTRATIVE LAW JUDGES

318See ACUS Recommendation 68-6, Delegation of FinalDecisional Authority Subject to Discretionary Review by theAgency, 1 CFR § 305.68-6 (1993). See also, e.g., 29 CFR §2200.91(2000)(Occupational Safety and Health Review Commission);17 CFR § 12.101, .106 (2000) (CFTC, reparation cases: “VoluntaryDecisional Proceedings”). For an article discussingdiscretionary review by agencies, see Gilliland, The Certiorari-Type Review, 26 ADMIN L. REV. 53 (1974).

319Form 14 in Appendix I is a sample errata sheet.

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VIII. THE DECISION

After receipt of all supplemental material and briefs theALJ should prepare the decision, the findings of fact andconclusions of law. Agency rules and practice will govern thedetails of how the ALJ submits the decision to the agency andserves it upon the parties. The notice of decision shouldprovide for filing of exceptions and briefs.

Some agencies have authorized their Administrative LawJudges to make the agency's decision, subject only todiscretionary review by the agency318. The title page of such adecision should state that it is an agency decision issuedpursuant to delegated authority (citing the pertinent rules) andthe notice of decision should describe how and when petitions forreview may be filed. Any order attached to the decision shouldinclude a similar statement of delegated authority and shouldprovide that, absent filing of a petition for discretionaryreview or review on the agency's own initiative, it will becomeeffective as the final agency order after a specified time. Theform for issuance of other decisions is similar, with suchchanges as are necessary to show that they are not final untilaffirmed by the agency or the agency review board.

The ALJ's jurisdiction usually ends upon the issuance of thedecision, except that errors may be corrected by issuance of anerrata sheet319. This should be used to correct serious errors ofsubstance only, never to correct obvious typographical mistakesor errors already the subject of exceptions.

A. Oral Decision

In cases involving few parties, limited issues, and shorthearings the ALJ may save substantial time by rendering the


320For some cases where the ALJ exceeded any authority torule orally under agency rules or precedents in force at thattime, see Local Union No. 195, United Ass’n of Journeymen andApprentices of the Plumbing and Pipe Fitting Industry, 237 NLRB931, 99 LRRM 1098 (1978); Plastic Film Products Corp. andAmalgamated Clothing and Textile Workers Union, AFL-CIO 232 NLRB722, 97 LRRM 1313 (1977).

3215 U.S.C. § 557(c) (1994).

322 See, Charles E. McElroy, 2 NTSB 444, 1973 NTSB Lexis 30(Order EA-499, Docket No. SE-1772) (1973). However, it should benoted that this opinion seems to focus on compliance with the

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decision orally -- if permitted by agency rules or policies. However, it must be emphasized that agency rules or policiescontrol. The rest of this section is relevant only to the extentthat the ALJ has authority, in the first instance, to render anoral decision.320

If the ALJ is authorized to issue an oral decision, theparties can be advised before the hearing to prepare for oralargument on the merits at the close of the testimony. After allevidence has been received and any procedural matters disposedof, the ALJ may recess the hearing for a few minutes to givecounsel an opportunity to read their notes and prepare for oralargument. After listening to oral argument and rebuttal, theALJ, perhaps after another short recess, may deliver the decisionorally on the record.

This procedure obviously increases the risk of overlookingsome material fact or legal precedent, but in a case simpleenough to truly warrant an oral decision, that risk is notsubstantial. There are, moreover, compensating advantages inaddition to the time saved. If witness credibility is involvedthe demeanor and the actual testimony of the witness are fresh inthe ALJ's mind.

Some cases involving formal adjudications will be governedby the provision of the APA which entitles the parties to areasonable opportunity to submit proposed findings orconclusions, and supporting reasons, before a recommended,initial, or tentative decision321. Advising the parties beforethe end of the hearing that an oral decision will be made at theclose of the hearing, and that parties desiring to submitproposed findings and conclusions should be prepared to do soorally, probably meets this requirement322.


agency's rules.

323 49 CFR § 821.42 (2000). For some other examples ofagency rules authorizing the ALJ to render a decision orally, see7 CFR § 1.142(c) (2000) (Department of Agriculture); 46 CFR §201.161 (2000) (Maritime Administration, referring to decision"whether oral or in writing").

324 For examples of agency rules which expressly deal withthe transcript of an oral decision, or otherwise reducing an oraldecision to writing, see 7 CFR § 1.142(c)(2) (2000) (Agriculture:copy to be excerpted from the transcript and furnished theparties by the Hearing Clerk); 39 CFR § 961.8(g) (2000) (PostalService: written confirmation of oral decision to be sent to theparties); 49 CFR § 821.42 (d) (2000) (NTSB, copy excerpted fromtranscript and furnished to parties).

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Sometimes, agency rules expressly authorize oral decisions. The Rules of Practice of the National Transportation SafetyBoard, for example, provide that "The law judge may render hisinitial decision orally at the close of the hearing . . . exceptas provided in § 821.56(b)."323

When an oral decision is issued from the bench thetranscript pages upon which the oral decision appears constitutethe official decision. No editing except typographicalcorrections should be made. A footnote should be inserted afterthe decision stating, in effect: "Issued orally from the benchon _____ in transcript volume _____ at page _____ through page_____ ."324

B. Written Decision

Most cases, because of their complexity, the size of therecord, the number of parties, or the number of issues, do notlend themselves to oral disposition. The following discussion isdirected to the drafting of written opinions, although some ofthe suggestions may also be applicable to oral decisions.

Ideally, the ALJ starts planning the decision when the caseis assigned. Each procedural step, including learning andshaping the issues, determining what evidence is needed,arranging for and obtaining essential material, and conductingthe hearing, should be aimed toward producing a clear, concise,


325 Form 23 reflects one Judge's innovative effort to keepthe record and materials organized by using the ongoing computerrevolution. In complex cases, Judge Tidwell, U.S. Claims Court,sometimes issues an order requiring parties to supplement theirusual paper filings by providing the court with electronic copies(on floppy disk) of filings which are greater than two pages inlength. Using the search capabilities of word processing programssuch as WordPerfect, Judge Tidwell is able to locate informationand points in the materials much more efficiently than otherwisecould be done by trying to visually scan hundreds of pages ofmaterial. Letter from Judge Moody R. Tidwell, U.S. Claims Court,dated April 3, 1992, to Morell E. Mullins.

326 For several articles on this subject, see Borchers,Patrick, Making Findings of Fact and Preparing a Decision, 11J.NAALS 85 (1991)[cited in Frost, The Unseen Hand inAdministrative Law Decisions: Organizing Principles for Findings

of Fact and Conclusions of Law, 17 J. NAALJ 151, 171, n. 7

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and fair record325. Any weakness or delinquency in these earliersteps makes the final task more difficult.

Still, the most difficult writing problem usually occurswhen the ALJ, facing an onerous deadline, assembles thetranscript, exhibits, notes, and briefs, and starts to put downon paper the findings and conclusions. Each ALJ differs inwriting habits, but all ALJs should strive constantly forimprovement.

Some aspects of decision-writing, like any other form ofcomposition, probably cannot be "taught," at least not in thesense of learning some rote formula or mechanical "rules" whichwill make the ALJ rival Oliver Wendell Holmes as a wordsmith. All of us probably have harbored mild envy, at one time oranother, toward a colleague who seems to have a natural talentfor writing. There are ALJs who seem to have a remarkableability to organize the material, and to use language in a waywhich converts a thick, jumbled record into a coherent decisionwhere everything falls into place, capturing the essence of whathappened and what the case is about, and how it should bedecided. Such a decision leaves the reader with a sense ofinevitability -- that this was the only way that this particulardecision could have been written. Most judicial opinions fallconsiderably short of such an ideal, but it is a goal worthkeeping in mind. Unless the ALJ is simply a genius, however, ittakes considerable effort and experience to attain such a stateof craftsmanship.326


(1997)]; Michael Frost, The Unseen Hand in Administrative LawDecisions: Organizing Principles for Findings of Fact and

Conclusions of Law, 17 J. NAALJ 151 (1997); Patrick Hugg,Professional Legal Writing: Declaring Your Independence, 11 J.NAALS 114 (1991)[cited in Frost, The Unseen Hand inAdministrative Law Decisions: Organizing Principles for Findings

of Fact and Conclusions of Law, 17 J. NAALJ 151, 171, n. 7(1997)]; Patrick Hugg, Professional Writing Methodology, 14 J.NAALJ 165 (1994); Harold H. Kolb, Jr., Res Ipsa Loquitur: TheWriting of Opinions 12 J. NAALS 53 (1992)[cited in Frost, TheUnseen Hand in Administrative Law Decisions: Organizing

Principles for Findings of Fact and Conclusions of Law, 17 J.NAALJ 151, 171, n. 7 (1997)]; Irvin Stander, AdministrativeDecision Writing, 10 J. NAALJ 149 (1990).

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In the meantime, there are certain approaches, procedures,and tools that may help to make deciding and writing the caseeasier. Some of these will be the focus of the rest of this chapter.

1. FormatNo rigid structure can be prescribed for all written

decisions, but some uniformity in basic outline is customary. Every decision should contain certain preliminary material,including a title page with the name of the case, the type ofdecision (e.g. initial decision or recommended decision), thedate of issuance, and the name of the ALJ. If the decision islong, there should be a table of contents and headnotes thatsummarize the principal issues and the decision. Also, a list ofappearances should be included, with the names of all persons andorganizations who entered an appearance and the persons andorganizations represented. The name and address of each personon whom the decision is to be served should be included on aservice sheet, usually attached at either the beginning or end ofthe decision.

The form of the text depends largely on the nature of thecase, agency practice, and the ALJ's style. The followingsuggestions may be helpful:

(a) The opening paragraphs should describe succinctly whatthe case is about. They may include a summary of the priorprocedural steps and the applicable constitutional provisions,statutes, and regulations.

(b) Although the relief requested by the parties may bedescribed in the introduction, detailed contentions should not berecited. These lengthen the opinion unnecessarily since, if they


327Cf.,5 U.S.C. § 557(c) (1994).

328Transcontinental Coach Type Service Case, 14 CAB 720(1951). Cf., Michigan Consol. Gas Co. v. FPC, 203 F.2d 895(3d Cir. 1953).

329In Northwest Air Service, Operating Authority, 32 CAB89, 97-98 (1960), the Board denied a motion requesting aspecific ruling by the ALJ on each proposed finding. For asimilar holding, see Allegheny Segment 3 Renewal Proceeding,36 CAB 52, 54, n. 3 (1962).

330 See, e.g., Affiliation of Arizona Indian Centers, Inc. v.Dept. of Labor, 709 F.2d 602 (9th Cir. 1983); P&Z Company, 6 OSHC(BNA) 1189, 1977 OSHD P22,055) (1977).

331See e.g., People for Environmental Enlightenment andResponsibility (PEER) v. Minnesota Environmental QualityCouncil, 266 N.W. 2d 858 (Minn. 1978).

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are material and relevant, they must be set forth in detail indiscussing the merits. Not observing this proscription is acommon failing in opinion writing.

(c) If proposed findings and conclusions have beensubmitted, the ruling on each of them should be apparent from thedecision,327 so the ALJ does not necessarily need to refer to eachof them specifically328. Likewise, insignificant or irrelevantissues raised by the parties need not be addressed specificallybut can be disposed of with a statement that all other questionsraised have been considered and do not justify a change in theresult329. However, a ALJ must be extremely careful in applyingthis principle. If the agency or a reviewing court disagreesabout the significance of a particular issue, remand mayresult.330

(d) The decision should include specific findings on allthe major facts in issue without going into unnecessary detail.331

(e) The ALJ should apply the law to the facts and explainthe decision. Whether the facts, law, and conclusions should becombined or placed in separate sections of the decision dependson the agency's requirements, the ALJ's style and such otherfactors as the type of case and the nature of the record.

(f) The decision should end with a summary of the principalfindings of fact and conclusions of law. In addition to makingspecific findings and conclusions, there should be ultimatefindings framed in the applicable statutory or regulatory


332 Expressly setting out "ultimate" findings in words whichtrack the statutory language or criteria is a precaution which isstrongly advisable because there are older Supreme Court caseswhich suggest that such findings cannot be inferred from thedecision's other findings and conclusions. See, Yonkers v.United States, 320 U.S. 685 (1944); Wichita Railroad v. PublicUtilities Commission, 260 U.S. 48 (1922). But see, Penn CentralMerger Cases, 389 U.S. 486 (1968).

333E.g., A UNIFORM SYSTEM OF CITATION (17th ed. 2000),commonly referred to as the "Harvard Blue Book." A recentcompetitor to the Harvard Blue Book is Association of LegalWriting Directors & Darby Dickerson, ALWD Citation Manual(Aspen L. & Bus. 2000). The latter publication is updated atwww.alwd.org

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language.332

In a case involving many issues or complicated facts, thedecision can be divided into labeled sections and subsections,with appropriate titles and subtitles. This will usually makereading, studying, and analysis of the decision easier andquicker. These divisions, with their titles, should be set forthin the table of contents.

Frequently, adopting a framework, or outline, for thedecision with appropriate headings before drafting the decisionwill make organizing the record, deciding the issues, and writingthe conclusions easier and clearer. This outline can, andprobably should, change as the decision-making progresses.

(g) Footnotes should be used for such material as citationsof authority and cross-references, but rarely for substantivediscussion. Footnotes on each page are preferable to a numericallisting of notes (endnotes) at the end of the opinion or in anappendix. The latter arrangement is inconvenient for the readerand hinders careful reading of the decision.

(h) Citations must be sufficiently detailed to enable theresearcher to find the source without difficulty. This can beassured by using a standard reference work.333

(i) Maps, charts, technical data, accounts, financialreports, forecasts, procedural details, and other germanebackground material too lengthy to be included in the text may beattached as appendices.

(j) In many cases the ALJ issues an order or proposedorder. In some cases other actions are appropriate. Forexample, in franchise cases, a certificate must sometimes beissued or amended. Such documents should usually be added as


334 For an article dealing with legal and technicalassistants, see Mathias, The Use of Legal and TechnicalAssistants by Administrative Law Judges in Administrative

Proceedings, 1 ADMIN. L.J. 107 (1987).

335 See, e.g., cases collected by the now-defunct CAB,in its Compilation of Court Cases of the Civil AeronauticsBoard.

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supplements to the decision.

2. ResearchThe ALJ must study the record and make an independent

analysis of the facts and contentions. This requires carefulexamination of legal and policy precedents of the agency and ofthe courts.

In some agencies technical assistants may be available toAdministrative Law Judges to help analyze and cross-indexdetailed or complicated data. At other agencies law clerks areavailable to provide this help.334

In researching agency decisions the ALJ should cover thosenot yet published in the bound volumes of the official reports. Many agencies have a section charged with indexing and digestingdecisions and orders; the ALJ should enlist its help in findingrelevant agency authority. Some agencies maintain a list of alltheir cases appealed to the courts and supply their ALJs withcurrent copies.335

The ALJ may also seek the advice of the senior ALJs of theagency, who may recall a relevant case that has escaped theattention of other researchers. Of course the standard researchtexts should also be used -- notably the commercial services,texts, and law reviews. Moreover, the ALJ must take advantage ofthe on-going revolution in electronic data bases and computer-based electronic research. Today's commercially availableservices, such as Lexis® and Westlaw®, and websites maintained byagencies themselves, enable a user to conduct legal, and other,research in ways which simply would not have been feasible for adecision-writer laboring under a heavy caseload and timedeadlines ten years ago. For example, an ALJ using computerizedlegal research literally could have at the fingertips every casedecided by a particular agency, if the agency's cases are in therelevant data base. Every case "in the computer" mentioning aparticular regulation can be retrieved with a few strokes on akeyboard. Or, an ALJ could locate almost every reference in the


336 See, e.g., Schwerman Trucking Co. v. Gartland SteamshipCo., 496 F.2d 466, 475 (7th Cir. 1974).

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CFR (except perhaps the changes which have only been recentlypublished) to a term like "in camera." Research that took hours,or simply could not have been done without poring for days overprinted materials, can be finished in minutes, using computerizedlegal research. The main problem, of course, is that the casesor other materials for which the ALJ is searching must first bein the particular data base. Although noncommercial Internetresearch tools are becoming increasingly available, their databases generally do not go back as far, and are not as completeas, the commercial data bases.

Another convenient source of information about relevantfacts, policy, and law is the briefs of the parties. Proposedfindings of fact and conclusions of law, if reliable, can savethe ALJ time and effort. Of course, the ALJ must consider thereliability of counsel or the party, or both. But it iscertainly acceptable to make proper and careful use of proposedfindings and conclusions.336

Although this use of counsel's briefs and arguments isbeneficial, the ALJ alone is responsible for the decision. TheALJ must use the utmost care to be sure that findings of fact aresupported by the record and the conclusions of law by reliableprecedent. This may require study of the legislative history ofrelevant statutes or review of the law of another agency whichregulates a similar industry or activity.

3. The Decisional ProcessThe cornerstone of the formal administrative process is the

principle that the decision of the Administrative Law Judge is anindependent intellectual judgment, based solely upon theapplicable law (including agency regulations and precedent) andthe facts contained in the record. This has several consequences.

Unless the material is properly entered into the record ofthe case, the ALJ should not consider public or privatestatements of agency members, Congressmen, congressionalcommittees, or administration officials. Other than statementsthat are considered part of the legislative history of therelevant statute, the only non-record pronouncements ofgovernment officials relevant to the decision are official andoperative pronouncements -- agency rules and decisions, but notpolicy statements by the agency members; current ExecutiveOrders, but not speeches by administration officials; statutesand relevant legislative history, but not newspaper interviews of


337 5 U.S.C. § 556(e) (1994). This section also provides forofficial notice.

338 See, Home Box Office, Inc., v. FCC, 567 F.2d 9 (D.C. Cir.1977) (rulemaking). But see, Action for Children's Television v.FCC, 564 F.2d 468 (D.C. Cir. 1977) (rulemaking); Sierra Club v.Costle, 657 F.2d 298 (D.C. Cir. 1981) (rulemaking). While thecases cited here involved rulemaking of one sort or another, and(in the main) ex parte contacts at agency head level, the pointin the text remains the same. The administrative law judge's useof extra-record materials is likely to provide colorable groundsfor appeal, at the very least.

339 “Once the agency has ruled on a given matter, [moreover,]it is not open to reargument by the administrative law judge; . .. although an administrative law judge on occasion may privatelydisagree with the agency's treatment of a given problem, it isnot his proper function to express such disagreement in hispublished rulings or decisions.” Iran Air v. Kugelman, 996 F. 2d1253, 1260 (D.C. Cir. 1993),(opinion by Judge Ruth B. Ginsburg),quoting Joseph Zwerdling, Reflections on the Role of anAdministrative Law Judge, 25 ADMIN. L. REV. 9, 12-13 (1973).

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Congressmen.Such statements, however high the source, are normally made

without benefit of the facts and arguments developed in thehearing process. Still more important, in many cases the APAwould prohibit the use of matters which are not on the record. "The transcript of testimony and exhibits, together with allpapers and requests filed in the proceeding, constitutes theexclusive record for decision in accordance with section 557 ofthis title."337 Even if the proceedings are not controlled by theAPA's statutory limitations, it is still the better part ofjudging to avoid basing a decision on anything extraneous to therecord.338

A few words are necessary concerning the relationship whichthe decision should bear to the established policies of theagency. It is the ALJ's duty to decide all cases in accordancewith agency policy.339

This duty can be especially perplexing in at least two typesof situations. First, court decisions (other than those of theSupreme Court) may have found the agency's policy or view to beerroneous, but the agency disagrees, and announces its"nonacquiescence," at least outside the circuit where theunfavorable decision was rendered. In this case, the agency takes


340 See Insurance Agents International Union, 119 NLRB768 (1957). As described in an article in 1998, “Non-acquiescence is a policy of federal administrative agenciesin which the agency, rather than appealing a court decisionwhich is unfavorable to the agency, chooses to ignore it. Inthe context of Social Security disability claims, this hasbeen a bone of contention for many years.” Joyce KrutlickBarlow, Alcoholism as a Disability Under the Social Security

Act - An Analysis of the History, and Proposals for Change,18 J. NAALJ 273, 290, n. 97 (1998).

341 Ithaca College v. NLRB, 623 F.2d 224 (2d Cir. 1980).More recent cases continue to criticize non-acquiescence.See for example, Rogers v. Chater, 118 F. 3d 600, 602 (8thCir. 1997) (“The Commissioner’s policy of non-acquiescenceis flagrantly unlawful.”) (dicta). For a case whichrecognizes that the ALJ is somewhat whipsawed if an agencyis "nonacquiescent," see Hillhouse v. Harris, 547 F. Supp.88, 93 (W.D. Ark. 1982), aff'd, 715 F.2d 428 (8th Cir. 1983)(referring to ALJ being in the position of trying to servetwo masters, the courts and the Secretary of Health andHuman Services). "Nonacquiescence" has generated asubstantial number of law review articles, among them,Diller & Morowetz, Intracircuit Nonacquiescence and theBreakdown of the Rule of Law: A Response to Estreicher and

Revesz, 99 YALE L.J. 801 (1990); Estreicher & Revesz, TheUneasy Case Against Intracircuit Nonacquiescence: A Reply,99 YALE L.J. 831 (1990); Estreicher & Revesz,Nonacquiescence by Federal Administrative Agencies, 98 YALEL.J. 679 (1989); Figler, Executive Agency Nonacquiescence toJudicial Opinions, 61 GEO. WASH. L. REV. 1664 (1993); J.Schwartz, Nonacquiescence, Crowell v. Benson, and

Administrative Adjudication, 77 GEO. L.J. 1815 (1989) Weis,Agency Non-Acquiescence: Respectful Lawlessness or

Legitimate Disagreement?, 48 U. PITT. L. REV. 845 (1987);Note, Administrative Agency Intracircuit Nonacquiescence, 85COLUM. L. REV. 582 (1985).

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the position that the ALJ is bound to apply the agency view ifthe agency has authoritatively declared nonacquiescence340.Nonacquiescense has been strongly criticized by some reviewingcourts.341

Second, the ALJ may have to decide a case under statutorycriteria which are open-ended, such as "public interest," and the


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agency's decisional precedents are policy-intensive, rather thanstrictly legalistic. On the one hand, if the ALJ operating undersuch a regime can discern the agency policy, then the ALJ'sdecision must adhere to that policy. On the other hand, if theparties have introduced evidence or arguments not previouslyconsidered by the agency, or if there are facts or circumstancesindicating that reconsideration of established agency policy maybe necessary, the ALJ has not only a right but a duty to considersuch matters and rule accordingly.

Moreover, although the ALJ should follow agency policy andthe law, the ALJ' decision may be the last opportunity to callthe attention of the agency (or the courts if the agency deniesreview) to an important problem of law or policy. An ALJ, whileadhering to agency policies may well have a duty to the agencyitself to include in his or her written opinion a temperate,careful discussion or analysis calling attention to a seriouslegal problem with present agency policies. The agency canignore, or even criticize, an ALJ who is wrong , but if theagency concludes that the ALJ has identified a serious problem,the ALJ who is correct may prevent substantial inequity andinjustice. Such action by an ALJ cannot be undertaken lightlybut must reflect long and careful research and analysis. TheALJ's facts and reasoning, based on the record and the law,should be so clearly set forth that the agency will know exactlywhat has been done and why.

Turning to another delicate subject, the ALJ also mustpreserve the integrity of the decisional process in ways that areless obvious. For instance, the ALJ should never write adecision motivated by a desire to curry favor with the currentheads of the agency, or based on considerations of the resultwhich the ALJ thinks the current agency heads subjectively want. An ALJ's responsibility is to follow agency policy, or wherenecessary in a case of first impression, establish a policyconsistent with existing agency policy. Attempting merely topredict future agency positions would be an abdication of thisrole. The whole purpose of the ALJ's decision is to give theagency the benefit of a considered decision after a proceedingspecifically designed to elicit the truth. Nothing whatever isgained, and a lot can be lost, if an ALJ's decision seeks to setbefore the agency members only a mirror of their own thoughts, nomatter how obtained.

It follows that the ALJ should not be swayed by anytentative finding of fact or tentative conclusion of law orpolicy contained in an order of investigation, an order to showcause, or any other action by which the agency has indicated howit may be thinking. Such premature findings may be based on


342 See, Withrow v. Larkin, 421 U.S. 35 (1975).

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staff recommendations and, although necessary for proceduralreasons, are not, cannot be, and are not intended to be, theagency's final decision. Indeed, to attribute that kind offinality to preliminary agency determinations would be to flirtwith violations of procedural due process.342

Agency staff's views should be subjected to the sameimpartial scrutiny as the views of any other interested persons. The staff position is not automatically correct merely because itis put forward as an objective, untainted furthering of thepublic interest. It is the ALJ's responsibility to decide wherethe public interest lies, and the theory of the system presumesthat this is best achieved by an impartial weighing of all factsand arguments.

Turning to more mechanical aspects of decision-making, theALJ sometimes must exercise discretion in determining whichissues in a complex case to consider first -- but once an issuethat is determinative has been decided, the ALJ usually shouldproceed no further. It may be argued that if the agencydisagrees as to the single decisive issue it will not have thebenefit of the ALJ's independent analysis and recommendation onalternative issues. However, in a complex case the major issuesmay be so numerous that to decide all of them in their variouscombinations could be a waste of time and generate anunreasonably long and complicated decision. It will likely bequicker and easier for the agency (if it disagrees with the ALJ)to develop one alternative dispositive issue than it is for theALJ to develop a dozen alternatives initially. Nevertheless, ina case where the decision is close on either of two determinativeissues, or where two important policy or legal issues are raised,it may be advisable to decide both.

The ALJ should not uncritically accept the parties'contentions as to which issues are decisive. The parties’ lack ofskill, abundance of cunning, or excessive zeal, may cause them tomake contentions which are incorrect as a matter of fact or law. After analyzing the record and reading the briefs the ALJ shouldmake an independent determination of the decisive issues andfocus the decision on those issues, regardless of the parties'emphasis.

A decision must not, however, rest upon a point which hasnot been raised at the hearing, in briefs, or in oral argument. Thorough preparation and proper management of the earlier stagesof the proceeding should avoid this problem; but if, after theproceeding has been concluded, the ALJ finds an unexplored issue


343See Flying Tiger-Additional Points Case, 58 CAB, 319,322, 364, 365 (1971).

344 This practice is, of course, common among the lowerfederal courts. See, e.g., U.S. v. Hayles. 492 F.2d 125 (5thCir. 1974).

345Capital Family Plan Case, 26 CAB 8, 9 (1957).

346Family Excursion Fares E-11867 (CAB, Oct. 11, 1957).

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which may be dispositive, supplementary briefs or memoranda, at aminimum, should be requested.

The ALJ should decide all the issues necessary to dispose ofthe case unless circumstances indicate that some or all should bedeferred. A decision may be deferred, for example, if it wouldbe affected by the outcome of an appeal pending before theagency,343 or before the Supreme Court344. However, there may becountervailing constraints, such as statutory time limits withinwhich to issue a decision. These can limit the ALJ's authority todefer rendering a decision.

If in the course of hearing and deciding the case the ALJdiscovers facts that indicate agency action may be necessary onother issues, recommendations for institution of anotherproceeding may be appropriate. For example, in a case involvingthe desirability of extending weekend family air fares to otherdays of the week, the ALJ realized that the legality of allfamily fares should be investigated, and recommended that theagency start such a proceeding345. The agency did so.346

If the parties timely raise new procedural questions afterthe close of the hearing, such as a motion to strike all or partof a brief, the ALJ should rule on them in his decision ifpracticable. However, when the question must be ruled upon beforedecision, such as a motion to receive newly discovered evidence,the ALJ should rule upon it promptly, deferring issuance of thedecision if necessary. But if the parties merely renewprocedural motions or objections made and disposed of at thehearing, the ALJ should let the record speak for itself unlessnew matters are presented that require further action ordiscussion.

4. StyleAdministrative cases sometimes involve complicated technical


146

matters, statistical concepts, intricate details and abstractideas. The ALJ should strive to present these in a fashion thata layman can understand. Technical or abstruse words should beavoided if possible; if not, they should be explained in afootnote.

Decisions should be as brief as the subject matter permits. Complicated statistical, financial, and scientific questionsfrequently require detailed analysis, computations, orcalculations. If these are included in the text, the opinion maybecome unnecessarily complicated, difficult to comprehend, andunreasonably long. It is frequently preferable to include onlythe basic findings in the text and place the detailed material inappendices.

Sometimes factual findings should be supported by specificcitations to the record. If, for example, a factualdetermination is based on a single item of evidence, thetranscript reference should be given; or if in a rate case theALJ makes independent cost computations from the conflictingbases and theories of different parties, citations to the recordshould be included, showing the derivation of each computation. However, a determination on a major factual question frequentlyresults from consideration of numerous items of testimony ofvarying weight. In such circumstances, excessive references tothe record can be misleading to the reader. The substance of thedecision must be anchored in the record, but the number andselection of citations to the record in some respects is a matterof style.

If the evidence is conflicting, but a finding is essential,the ALJ may be tempted to compromise by using weak phrases suchas "it appears" or "it seems." The ALJ should not try to evaderesponsibility in this fashion. A finding must be positive.

It may occasionally be desirable to quote directly from thetranscript of the oral testimony. This device can be effectivefor emphasis, but should be used carefully. Long verbatimexcerpts from the transcript may be unclear and prolix, andediting them for the opinion may lead to charges of selectivequotation.

With respect to a sometimes-overlooked resource which isavailable to the ALJ, it is frequently advantageous to borrowdirectly from a brief -- a document which is, after all, part ofthe record. If counsel has submitted an objective finding offact or an articulate statement of law or policy with which theALJ entirely agrees, it is wasted effort to recast it in theALJ’s own words. However, wholesale incorporation by referenceof a party's entire brief and proposed findings, of course,ordinarily should be avoided.


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It may sometimes be necessary for the decision to containderogatory findings about a particular individual. If, forexample, the testimony of a certain witness contradicts one ofthe findings, the ALJ may have to explain why the witness was notcompetent or credible. This should be avoided if possiblewithout weakening the opinion; but if and when it is necessary,the explanation should be as temperate as the integrity of thedecision will permit. Similarly, if it is necessary to correctan error or refute an absurd argument, the name of the personresponsible should be omitted if that will not impair thecoherence of the decision. Although the ALJ should notneedlessly offend or insult any person, the decision should bescrupulous in stating the facts accurately and clearly.

Where credibility is in issue the reviewing authority maylook to the ALJ's demeanor findings on the theory that the ALJobserved the witness and therefore was in the best position toevaluate the witness' credibility. Consequently, the ALJ shouldexercise extreme care in such findings, and avoid conclusorystatements such as "from the witness' demeanor it is concludedthat he cannot be believed." Instead, credibility findingsshould be supported by specific conduct or observations. Forinstance, a witness may be talkative and comfortable in responseto all questions, except those addressing the issue on whichcredibility is doubtful, but whenever the questioning turns tothat issue, the witness becomes evasive and starts looking awayfrom the ALJ and toward counsel, as if for signals. At any rate,to the extent possible, findings grounded on witness demeanorshould have some reference point in observed behavior, such asevasiveness, hesitancy, or discomfort under questioning. (For anarticle addressing this topic, see James P. Timony, DemeanorCredibility, 49 CATHOLIC U. L. REV. 903 (2000))

C. Writing the Decision

The ability to conduct a hearing and decide a case fairlyand accurately is crucial, but an inability to clearly andconcisely explain the resulting decision impairs the value of allother aspects of the ALJ's performance. Writing is a difficultart, and despite high qualifications, writing experience, andtraining, an ALJ may have difficulty putting findings andthoughts on paper. Except for the fortunate few endowed withexceptional writing ability, each ALJ must constantly work onmaintaining and improving this skill.

The inferior quality of much legal writing has inspiredcorrective action by many schools, writers, teachers, and


347United States v. One Book Called Ulysses, 5 F. Supp.182 (S.D.N.Y. 1933).

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critics. Some federal agencies have attempted to improve theirwritten materials. A recent example is National Labor RelationsBoard, NLRB STYLE MANUAL: A GUIDE FOR LEGAL WRITING IN PLAIN ENGLISH(Revised, January 2000).

In addition, there are numerous excellent books on style andwriting simple English. Some of special relevance to lawyers andALJs are set out in Appendix III.

Legal writing need not be complex or confusing. Judge JohnM. Woolsey's opinion in the Ulysses Case,347 familiar to manyjudges, is an example of clear judicial writing:

II. I have read ‘Ulysses’ once in its entirety and I haveread those passages of which the Government particularlycomplains several times. In fact, for many weeks, my sparetime has been devoted to the consideration of the decisionwhich my duty would require me to make in this matter.

Ùlysses’ is not an easy book to read or to understand.But there has been much written about it, and in orderproperly to approach the consideration of it it is advisableto read a number of other books which have now become itssatellites. The study of Ùlysses’ is, therefore, a heavytask.

III. The reputation of Ùlysses’ in the literary world,however, warranted my taking such time as was necessary toenable me to satisfy myself as to the intent with which thebook was written, for, of course, in any case where a bookis claimed to be obscene it must first be determined,whether the intent with which it was written was what iscalled, according to the usual phrase, pornographic -- thatis, written for the purpose of exploiting obscenity.

If the conclusion is that the book is pornographic thatis the end of the inquiry and forfeiture must follow.

But in Ùlysses,’ in spite of its unusual frankness, Ido not detect anywhere the leer of the sensualist. I hold,therefore, that it is not pornographic.


149

In writing on a difficult legal question involving a bookwritten in an unconventional manner, Judge Woolsey's use of "I"is particularly striking. For a case of this type involvingsomewhat subjective standards, the use of the first person makeshis thinking clear. It emphasizes that this decision, the law,and the book, Ulysses, deal with human beings. The only legalwords in the excerpt quoted are "I hold, therefore." Thelanguage used is clear and simple English, and it tells clearlywhat he did personally to reach his decision. The decision isfour pages long. The complete opinion contains a few unusualwords and several long ones, but the entire opinion and thereasons for Judge Woolsey's action are easily understood by alayman.

Most Judges do not write with the elegance of Judge Woolsey. Sometimes, they simply do not have enough time to revise andrewrite. Nevertheless, they at least should strive to writesimply enough so that anyone can understand them. Plain, simpleEnglish is more likely to convey a Judge's findings to the readerthan complicated legalistic phrasing.

Nothing suggested in this book will be sufficient to giveany ALJ the smooth and clear legal writing ability to which alljudges aspire. Nevertheless, there are certain customs andpatterns, which, if followed, can make the ALJ's decision shorterand easier to read.

Set out below, therefore, are several areas in whichimprovement is frequently needed. Study of this material canserve as a starting point for an ALJ seeking greater skill. Noattempt is made to give a mini-course in writing or a review ofgrammar. This discussion deals primarily with matters ofbrevity, clarity, and stylistic quirks. Thorough discussions ofthese subjects and related matters of style and grammar will befound in books cited in Appendix III.

1. Brevity

a. Needless Words. Strunk and White's The Elements of Styleis a good place to start. This book of only 85 pages is filledwith clear suggestions for making writing more readable. Theauthors, emphasizing that one should omit needless words, say: "Asentence should contain no unnecessary words, a paragraph nounnecessary sentences, for the same reason that a drawing shouldhave no unnecessary lines and a machine no unnecessary parts.This requires not that the writer make all his sentences short,or that he avoid all detail and treat his subjects only in


348 Strunk & White, The Elements of Style 23 (3d ed. 1979).

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outline, but that every word tell."348

b. Short Simple Words. Long, cumbersome, and confusing wordsand phrases are used frequently by professional and businesspeople including judges, lawyers, and teachers. There are, nodoubt, numerous reasons for this tendency, such as a desire forprecision, a desire to impress a client, or the tendency to usehighly technical words even though one is writing for the layman.

Sometimes, the longer word or phrase is merely a short wordlengthened unnecessarily -- a kind of inflation. A classicexample is substitution of utilize for use. Unfortunately, thetendency to utilize, rather than use, remains prevalent. A fewexamples of the "longer word" problem follow, but their number islegion.

Longfinalizeeffectuatepreplan, plan ahead, plan in advancepoint in timeat the present writingare bound to be in agreementin the not too distant futurehave duly noted the contents ofto the fullest possible extentalong the lines ofregardless of the fact thatunder circumstances in whichin reference toin the event that

Shortfinish, completeeffectplantimenowagreesoonhave readfullylikealthoughwhenaboutif

Use the longer words or phrases only if the shorter ones will notdo.

c. Redundant Phrases. Lawyers habitually group two or morewords meaning the same thing, such as null and void; last willand testament; rest, residue, and remainder; transfer, convey,

and pay over; or alter, change, or modify. If a lawyer is tryingto impress a client, well-known redundant phrases may be helpful,but even that is doubtful. Probably more clients are annoyed byneedlessly repetitious language than are impressed by the use ofstock phrases.

A judge needs only to explain to his readers -- the partiesand their attorneys, the agency, the interested public, and


349 The revisor of the 1992 edition and the present editioncannot recall the source of this quotation, but reluctantlydisclaims authorship.

350R. Gunning, Technique of Clear Writing 34 (1968).

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perhaps a reviewing court -- what was done and why. A readerdoes not like words that confuse or words that are used fordisplay. A reader wants only to learn with minimum time andeffort what the judge said.

d. Short Sentences. Long sentences are hard to understand. A timeless motto for writers is, "Short sentences can be read;long sentences must be studied.”349 The Judge should state factsand reasons in terms easily understood by the layman as well asby the lawyer. By the use of a few connecting words with shortsentences it is frequently easy to make the story flow evenly. Even if the use of simple words and short sentences in an opinionresults in a little jerkiness that a stylist might avoid, littleis lost so long as the meaning is clear.

Tests over a seven year period show that the averagesentence length in popular magazines has been kept between twelveand fifteen words350. Although a Judge may argue that a legaldecision is more important and deals with deeper subjects thanthose in popular magazine articles, ease of reading andcomprehension is surely as important in the documents that ruleour lives as in those that entertain us.

Long sentences make writing hard to understand. The reader,either consciously or subconsciously, needs a break -- a rest. Furthermore, one thought per sentence is easy to understand.

Therefore, break up long sentences. Aim to keep averagesentence length below twenty-five words. Try to separate a longcompound sentence into two or more shorter sentences. A relatedproblem is the questionable connection of two sentences by theword however:

He was driving only 30 miles per hour, however, thiswas too fast.

One way to revise such a sentence:He was driving 30 miles per hour. This was too fast.

Occasionally thoughts are so interrelated that one sentencewith several clauses and phrases may seem essential. However, ifno matter how arranged it is still difficult to understand, thenbreak up the sentence into three or four parts. Clarity is more


351J. Landis, The Administrative Process 105 (1938).

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important than stylish beauty.Sometimes even breaking up a sentence or rewriting it does

not clarify the meaning. The reason may be that the thinking isnot sound or the facts are inconsistent. This applies not onlyto sentences but to paragraphs and even entire decisions. AsDean Landis said:

Any judge can testify to the experience of working onopinions that won't write with the result that hisconclusions are changed because of his inability tostate to his satisfaction the reasons on which theydepend. . . .351

If a thought does not look right on paper, consider backingup for a rethinking or an entirely new approach. What youbelieve initially to be stylistic problems in expressing the ideaor point actually may be symptoms of more basic defects in thesubstance of the idea or point.

e. Paragraphs. Although a paragraph is used to groupthoughts, there is no rigid rule for length of a paragraph. Aparagraph may vary in length from a one word sentence to manysentences of substantial length and complexity.

Paragraph length should depend on what the writer is tryingto communicate. Still, the writer needs to seek a balancebetween extremes. On the one hand, large blocks of print scarethe reader. On the other hand, several short paragraphs insuccession may be annoying. Most good paragraphs have betweentwo and ten sentences. If a paragraph seems too long, it isusually possible to divide it into two or more paragraphs withoutdisturbing or distracting the reader.

2. PunctuationPunctuation is the simplest device for making things easier

to read. It is also an important road sign to the reader: i.e.,making it easier to understand the intended meaning of a passage.

Punctuation is frequently left to a stenographer. This is amistake. Even a stenographer who knows how to punctuate may notknow precisely what you want to say. Punctuation can be used toemphasize, to clarify, and to simplify. Commas, semi-colons,periods, hyphens, dashes, and all the other punctuation symbolshave specific purposes. If used correctly they will simplify


352U.S. Government Printing Office (2000).

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writing and make your writing easier to read. Useful rules canbe found in the U.S. Government Printing Office Style Manual,352

and other grammar and style manuals. Rules vary somewhat, butreliance on any standard work should suffice to keep meaningsclear and easy to understand.

3. Active or Passive VoiceUse of the active voice rather than the passive voice is

frequently preferable for two reasons. First, it saves words:

The convict was sentenced by Judge Jones.Judge Jones sentenced the convict.

Second, it is more likely to reveal who the actor is:

Drivers' licenses will be issued.The clerk will issue drivers' licenses.

In addition, the active voice is normally more direct andvigorous. The subject of the active-voice sentence is acting ordoing something. Consequently, the active voice should be usedin the absence of a good reason for using the passive.

This does not mean that the passive voice always should beavoided. To the contrary, passive may be preferable when thething done is important and who did it is not, or when the actoris unknown or indefinite. The passive voice can also be used foremphasis, or when detached abstraction is desired.

4. AmbiguityAvoid the ambiguous. Like much advice, this is easier said

than done. Often we do not realize that what we have said orwritten could be susceptible to more than one meaning. "Thisbrief reads like a first draft dictated to a stenographer needingimprovement." Sometimes we even refuse to see the ambiguity inour words when it is pointed out. At any rate, ambiguity slowsand confuses the reader. It may even be used as a deliberate wayto deceive.

Ambiguity may be especially likely when the writer uses aword with two meanings or two words with the same meaning neareach other. For example, a lawyer or a judge should not use"exception," meaning an exclusion, in, or near, a sentencecontaining "exception" used as a legal term meaning a formal


353H. Fowler, A Dictionary of Modern Usage 148-151 (2ded. E. Gowers 1965).

354R. Wydick, Plain English for Lawyers 57 (1979).

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objection. (If this shortcoming occurs frequently in a piece ofwriting, it may be a clue that the piece is a first draft,possibly dictated to a machine or stenographer.)

When a writer deliberately uses, for the sake of "variety,"two words meaning the same thing, the potential for ambiguity isno less. Problems resulting from deliberately using differentwords meaning the same thing, especially in the same passage of adecision or document, are discussed in the section on ElegantVariation.

In related vein, some people cannot bear to repeat a name orproper noun anywhere near its original use. They feel somehowthat they must use a pronoun. But sometimes the antecedent of apronoun is not clear. If so, do not hesitate to strike thepronoun and use the name of the individual or object. Minorstylistic awkwardness is a small price to pay for majormisunderstandings. A lapse in stylistic elegance is not as badas creating the impression among your readers that you werecompletely oblivious to the meaning of what you have written.

After writing and rewriting a decision, an ALJ frequentlybecomes so familiar with its contents that it is difficult todetect ambiguous passages. It always helps to turn it over to alaw clerk or an associate for a fresh look.

5. Stylistic QuirksAvoid stylistic quirks. These small distractions divert the

reader's attention from what is being said to how it is beingsaid. The reader has enough distractions without the writerincreasing them by efforts to be verbally eccentric or cute.

a. Elegant Variation353. Elegant variation is the use ofvariety for its own sake -- changing words and structure to holdthe reader's attention and to avoid boredom. The following is anexample:

The first case was settled for $2,000, and the secondpiece of litigation was disposed of out of court for$3,000, while the price of amicable accord reached inthe third suit was $5,000.354


355G. Orwell, Politics and the English Language, inSHOOTING AN ELEPHANT AND OTHER ESSAYS 90 (1950).

155

But what has happened? The reader may wonder whetherdistinctions were intended between case, piece of litigation, andsuit, and between settled, disposed of out of court, and amicableaccord.

(Some writers have real difficulty avoiding elegantvariation. These poor souls may be the by-product of high schooland college English teachers' otherwise appropriate efforts tomake their students use synonyms and produce "lively" writing.However, to any judge who is writing a decision, clearcommunication is primary, and liveliness is secondary.)

There are at least two ways, stylistically, to handle anelegant variation: (1) Repeat the same words or phrases. It isbetter to bore the reader than to confuse him. (2) Sometimes itis possible to put the repetitious material in an opening clausefollowed by two or more phrases or clauses that implicitly referback to the opening clause. For example, the sample sentencecould be reworded as follows:

“The first case was settled for $2000, the second for $3000,and the third for $5000.”

Although breaking a document, or passage, into lettered ornumbered divisions may sometimes confuse the reader, thisprocedure, used carefully, can frequently assist the reader. "Thecomplainant has: (1) not filed a response to respondent's motionto suppress; (2) ignored repeated admonitions to concludediscovery by the agreed-upon date; (3) been late in every filingrequired by the agency's rules . . . ."

b. Litotes. Some judges use litotes, affirmativestatements expressed by denying the contrary, either as falsecourtesy to spare someone's feelings or to express a doubtfulfinding. Avoid litotes unless they are clearly needed. Usekindly rather than not unkindly, naturally rather than notunnaturally. George Orwell recommended inoculation against usinglitotes by memorizing this sentence: "A not unblack dog waschasing a not unsmall rabbit across a not ungreen field."355

c. Genderless English. Avoiding the appearance of gender-bias in writing is worthwhile, but requires some effort. Moreover, the effort can be overdone, especially if the writerresorts to creating new words, like substituting "personhole" for“manhole.” However, a little good faith effort often can avoid


156

passages like "the writer should know that his failure todemonstrate his sensitivity to gender-bias can result in hisleaving an impression that he is totally ignorant about the waylanguage conditions his behavior." Nevertheless, the writer isin a sometimes-difficult situation. If you use his for anypronoun, you may be criticized. His or her frequently soundsawkward, and substituting their may obscure the meaning.

At the very least, be aware of the problem. And certainly,be consistent in referring to males and females. If you refer tomen by their last names or first names do the same with women. Try to omit irrelevant references to physical characteristics ofeither sex. Avoid patronizing and stereotypes. Do not say fairsex, weaker sex, or the ladies; say women. If you use Esquire ona service sheet, use it for all lawyers regardless of sex. Biasimplicit in such phrases as a manly effort or a weak sistershould be avoided. But don't overdo it by neutering everythingin sight.

There are not always clear-cut answers to problems of genderand language, but so long as sex is irrelevant the judge shouldword the decision carefully to avoid any sexual bias.

6. Miscellaneous

a. Names. If referring to a person or organization, itgenerally is appropriate to set out the name in full the firsttime it is mentioned, followed parentheses containing a shorterversion of the name such as a word, abbreviation, or shortenedtitle. Thereafter the word, abbreviation, or shortened title canbe used throughout the decision. In most situations, do notassume that the reader is already acquainted with the NLRB orAAA. (In fact, there could be several groups with the "AAA"initials.) Write out "National Labor Relations Board (NLRB)" thefirst time it is mentioned; treat the American AutomobileAssociation similarly. If the names of persons or things aresimilar or confusing, the ALJ should devise short easilydistinguishable names or descriptions (with parentheticalexplanations, if necessary).

Personal honorific titles such as Doctor, Professor, orGeneral ordinarily should not be used if they are irrelevant. Aparty may infer that the ALJ is assigning some weight to thetitle.

b. Technical Terms. Technical terms are frequentlynecessary when dealing with many subjects. An ALJ who is familiarwith the subject may tend to use complex and technical languageincomprehensible to many persons interested in his decision. TheALJ should resist this tendency and, if possible, use words andexpressions comprehensible to a lay reader. If that is


157

impossible, unusual words and phrases should be defined. Thiscan be done in a footnote or a special section for definitions. Alternatively, the ALJ may summarize in the main text and put thetechnical details and computations in an appendix.

c. Attribution. Excessive or needless attribution wastes agreat deal of space, especially in judicial writing. As aconsequence of realizing that anything in the written decisionmay have legal effect, the ALJ is tempted to overreact byrepeating the source of every bit of information. There areseveral convenient devices for avoiding this problem. The ALJmay only need to state:

"Mr. X testified as follows:"and continue with indirect quotations for a sentence, paragraph,or page without repeating the attribution.

The ALJ may place a summary of the testimony or statementsof each witness under separate subheadings such as Green'stestimony or Smith's statement.

Provided the result is clear, the ALJ may attribute thetestimony early in the passage with no further reference untilthe last sentence, then say: "Mr. Jones concluded his testimonyby stating that. . . ."

d. Speech Tags. These are journalistic expressions such ashe said, used to attribute direct quotations. Ordinarily, speechtags should not be placed in the middle of a sentence. Also, aspeech tag need not be repeated even for a long quotation. Onceis usually enough.

e. Ellipsis. Ellipsis is the omission of a word or wordsthat the reader will, by inference, understand or apply. It isfrequently an easy way to avoid needless and boring repetition.

“X bank has $9 million in negotiable municipal bonds, Y bank$7 million, and Z bank $4 million.”

Ellipsis is also used to shorten quotations by insertingthree periods (four if the sentence is ended) for the omittedmaterial.

f. Latin Terms. Et al., an abbreviation for et alii, isLatin for and others. Etc., an abbreviation for et cetera, isLatin for and other things. And etc. is redundant. Et al. maybe useful in legal instruments to indicate persons whose namesare not known, or for the names of parties too numerous tomention.

Sic is Latin for so or thus. It should be used only toassure the reader that what is immediately preceding is correctlyquoted when on its face it appears doubtful. It should never beused to criticize grammatical errors, to call attention to jokes,or (in place of quotation marks) to indicate an ironical use of aword. Sic may be used to indicate that a misspelling in quoted


356 For an excellent book which concentrates on the much-neglected topic of how to revise one's writing, see Ede, WORK INPROGRESS: A GUIDE TO WRITING AND REVISING (St. Mary's Press, 1989).

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material appears in the original.g. Write It Down. Although this point is not directly

related to the actual writing of opinions, the ALJ shouldcultivate the habit of marking such details as dates, names,addresses, telephone numbers, and even the time of day, onrelevant documents. The ALJ should also record such matters inoffice appointment books, calendars, and professional diaries. This suggestion will not directly improve an ALJ's writing, butit will save time and effort in writing opinions. All judgesrealize the necessity for written records and exact dates, butmany waste hours looking for and attempting to verify details.7. Being Clever

Dr. Samuel Johnson reportedly said: "Read over yourcomposition, and when you meet with a passage that you think isparticularly fine, strike it out." Although there are plenty ofexceptions to this dictum, it contains some wisdom. Attempting toshine with cleverness is a good way to look foolish, andegocentric.

Once more, cleverness is NOT the first priority of decision-writing. Judges, like all writers, on occasion will have aninspiration or perform a brilliant bit of stylistic acrobatics onsome obscure point, that viewed a few days no longer seems verybrilliant.

The ideal is not to demonstrate your own brilliance. Theideal lies in the opposite direction. The ideal is a decisionwhich takes so little effort to read and understand that thereader becomes unaware of the writer.

8. RewritingThe preceding suggestions of how any judge, ALJ or

otherwise, can simplify and clarify the written decision shouldbe helpful. Judges may find that a good way to ensure clarity andsound reasoning is to have an able colleague review, edit, andcriticize the decision.

Finally, all judges know that the only way to write anydocument is to assemble the relevant material and the dictionary,thesaurus, stylebook, and guide to citations, and to write. Thenrewrite, rewrite, and rewrite.356

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